American Bank & Trust Company v. Straughan

248 So. 2d 73, 1971 La. App. LEXIS 6287
CourtLouisiana Court of Appeal
DecidedApril 19, 1971
Docket8296
StatusPublished
Cited by12 cases

This text of 248 So. 2d 73 (American Bank & Trust Company v. Straughan) is published on Counsel Stack Legal Research, covering Louisiana Court of Appeal primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
American Bank & Trust Company v. Straughan, 248 So. 2d 73, 1971 La. App. LEXIS 6287 (La. Ct. App. 1971).

Opinion

248 So.2d 73 (1971)

AMERICAN BANK & TRUST COMPANY
v.
William J. STRAUGHAN, Jr., et al.

No. 8296.

Court of Appeal of Louisiana, First Circuit.

April 19, 1971.
Rehearing Denied May 31, 1971.

*74 William H. Baker, of Holloway, Baker, Culpepper & Brunson, Jonesboro, for appellant.

Sidney D. Fazio, of McCollister, Belcher, McCleary & Fazio, Baton Rouge, for appellee.

Before LANDRY, ELLIS and BLANCHE, JJ.

BLANCHE, Judge.

This is a devolutive appeal taken by defendants cast in judgment in favor of plaintiff in a suit on promissory notes. The facts giving rise to this appeal are well summarized by the trial court in Written Reasons for Judgment, pertinent excerpts from which are reproduced below:

"The plaintiff, a banking corporation, has instituted this suit on the balance due on two promissory notes executed by William J. Straughan, Inc., the notes being in the principal amounts of $161,631.97 and $25,000.00, respectively. Further, the bank seeks recognition and judgment on certain described collateral allegedly securing the two notes just described. These are: An Act of Collateral Mortgage in the sum of $30,000.00 executed by William J. Straughan and Myra P. Straughan, defendants herein, covering real property in East Baton Rouge Parish; a Collateral Chattel Mortgage note in the amount of $10,000.00 covering certain motor vehicles and recorded in East Baton Rouge Parish; a *75 Collateral Chattel Mortgage in the sum of $50,000.00 executed by William J. Straughan, Inc. covering certain motor vehicles and equipment used in the defendant's business in East Baton Rouge Parish; the Assignment and Pledge of certain accounts receivable of William J. Straughan, Inc.; the Pledge of 99 shares of the capital stock of William J. Straughan, Inc., issued in the name of William J. Straughan; and the Continuing Guaranty of William J. Straughan.
"Essentially there is no serious dispute regarding the facts in this case. It appears that in May, 1967, defendant, William J. Straughan, as President of William J. Straughan, Inc. applied to the plaintiff for a line of credit in the amount of $150,000.00. He offered certain collateral in support of the line, namely, a mortgage on his office building; a second mortgage on his house; chattel mortgages on his trucks and equipment; assignment of accounts receivable and life insurance. The line of credit was approved by the bank and the collateral was delivered. In addition to the collateral on the application, Straughan also furnished his personal continuing guaranty and had delivered to the bank stock certificate Number 1 for 99 shares of stock of William J. Straughan, Inc.
"On October 31, 1968, the defendant executed the note sued on in the amount of $161,631.97. (P-1) On this note there is a space for the insertion of collateral pledged to secure the note. At the time of the execution of the note, the bank official preparing the note inserted only the following language: `Secured by List of A/R dtd 10-25-1968 Totaling 172,218.55.' Subsequently, on November 15, 1968, the defendant executed the second note sued on in the sum of $25,000.00. (P-2) This note was on the same form as the larger note and contained the same language in the space for collateral; however, this note was recited as being $25,000.00 in figures, but was for Twenty-five dollars in words.
"The defendant acknowledged his signature personally and on behalf of the corporation on each of the described notes and further admitted that the larger note represented a consolidation of smaller notes for money which the bank had actually loaned him and that he had received the sum of $25,000.00 upon execution of the second note dated November 15, 1968. Finally, the defendant does not dispute the credits claimed to have been applied to the notes by the bank, thereby admitting to the correctness of the balances due of $135,201.52 on the larger note and $21,135.66 on the smaller note.
"The plaintiff bank on the other hand acknowledges that prior to the filing of suit herein and after the execution of the notes, it added collateral on both notes by inserting language to cover the collateral mortgages on the real estate and the trucks and equipment, as well as the stock certificate of defendant corporation. There is a dispute between the parties as to whether the latter items were to be collateral; however, the Court, after considering the evidence introduced, believes that such was the intention of the parties at the time the original negotiations were held for the line of credit." (Written Reasons for Judgment, Record, pp. 27-29)

The first specification of error assigned by appellants involves the finding by the trial court that although there was a material alteration of the two notes sued on, nevertheless, this material alteration was authorized by the maker. The trial court held that the listing of additional collateral on the two notes by plaintiff constituted a material alteration of the instruments as provided by LSA-R.S. 7:124 and 7:125 of the Negotiable Instruments *76 Law,[1] but further held that the material alteration was authorized, thus precluding avoidance of the negotiable instrument as provided in the last clause of the first paragraph of LSA-R.S. 7:124.[2] This specification of error is without merit for the reason that we are satisfied that the alteration complained of does not constitute a material alteration of a negotiable instrument so as to render the negotiable instrument void.

It is clear that for the rule of avoidance on the ground of material alteration of an instrument as provided in Section 124 of the Negotiable Instruments Law to be applicable, the alteration must be material as provided in Section 125. Inasmuch as the alteration complained of does not fit within any of the five specified parts of Section 125, the alteration could be material only if it satisfied the language of the last provision of Section 125; that is, if it constitutes "any other change or addition which alters the effect of the instrument in any respect." (LSA-R.S. 7:125 — Emphasis added)

It is clear that these sections of the Negotiable Instruments Law, because they give rise to avoidance of an instrument, are to be construed with reasonable strictness. Agricultural Credit Association v. Iaccuzzo, 167 La. 230, 119 So. 31 (1928). The alteration complained of does not alter the effect of the instrument in any respect. Instead, it merely lists additional collateral claimed by plaintiff to have been pledged to secure the principal obligations. Indeed, the notes sued on contain the following printed language:

"This note and any extension and renewal thereof and any and every debt, liability or obligation, direct or contingent, due or to become due, whether now existing or hereafter arising, by the undersigned, or any of them, to the said AMERICAN BANK & TRUST CO., up to the sum of Two Million Five Hundred Thousand Dollars ($2,500,000.00), are and shall be secured by the pledge of the securities or property listed and described as follows, vis: * * * and any substitution thereof or additions to the above collateral, and all other securities or property or credits that may be in transit to or from said bank by mail or carrier, or that may now or hereafter be held by or left in possession or under control of said bank for any purpose whatsoever by any of the parties hereto,

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Cite This Page — Counsel Stack

Bluebook (online)
248 So. 2d 73, 1971 La. App. LEXIS 6287, Counsel Stack Legal Research, https://law.counselstack.com/opinion/american-bank-trust-company-v-straughan-lactapp-1971.